Clearing the Haze — The NJLAD & Medical Cannabis Users' Workplace Rights

The New Jersey Law Against Discrimination

The New Jersey Law Against Discrimination (NJLAD) has been protecting the rights of people in New Jersey since 1945. It prohibits discrimination based on certain protected characteristics in employment, housing, education, and other settings. Under the current version of the law, employers are barred from discriminating against employees or applicants based on factors that include disability, race, sex, gender identity or expression, religion, national origin, and more. This means they may not discipline, demote, terminate, refuse to hire, lay off, or reduce the pay of employees based on disability or other protected characteristics.

Medical Marijuana in New Jersey

In 2010, New Jersey’s Compassionate Use Medical Marijuana Act (CUMMA) granted qualifying patients in New Jersey the right to access and use cannabis and cannabis-containing products. However, the law explicitly states that it shall not “be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” So, while New Jersey residents could safely consume cannabis medicine in their homes, they were not protected from discrimination at work.

Fortunately for New Jersey’s thousands of medical marijuana patients, the law has been updated and expanded since the passage of CUMMA. In 2019, the legislature added an amendment making it “unlawful to take any adverse employment action against an employee” solely because of their status as a medical marijuana patient. The new law, however, applied only to employees who were subject to discrimination after the date of its enactment.

Compassionate Use & the NJLAD

In 2020, the New Jersey Supreme Court issued a ruling that connected the Compassionate Use Act with the NJLAD to create greater protections for workers who use cannabis as medicine to treat a disability. The court ruled that since the legislature established that there are legitimate medical uses for cannabis, the NJLAD protects patients who are legally using it to treat a disability.

In Wild v. Carriage Funeral Holdings, Jamison Mark of the Mark Law Firm represented the plaintiff, Justin Wild, who had alleged that he had been legally using cannabis as part of his medical treatment, and for that he was illegally terminated. In the course of his work, a vehicle Wild was driving was struck by another vehicle that had run a stop sign. Wild was taken by ambulance to an emergency room, where he disclosed that he had been using cannabis as advised by his doctor. The treating physician determined that Wild was not impaired at the time and refused to do a blood test because Wild’s prior marijuana use would have produced a positive result. Wild alleged that he was wrongfully fired for the legal use of medical marijuana. 

The N.J. Superior Court held, and the N.J. Supreme Court agreed, that a lower court had erred in dismissing the plaintiff’s claims on the basis that CUMMA does not require employers to accommodate marijuana use. The court stated that while CUMMA may not prohibit employers from firing employees for using medical marijuana, it also doesn’t interfere with other laws that might.

In short, like the first law of thermodynamics, that provision—beyond its own limited criminal and regulatory context—neither creates nor destroys rights and obligations.

As a result, the court found that the NJLAD protects medical marijuana patients who rely on the protections in CUMMA to use cannabis to treat a disability. The N.J. Supreme Court went further than the Superior Court, stating that CUMMA does, in fact, create new employment rights:

…had the Legislature not enacted the Compassionate Use Act, he would have no LAD claim for disability discrimination or failure to accommodate following the termination of his employment.

In short, because the New Jersey legislature determined that cannabis is an appropriate medical treatment that deserves legal protection, employers and others covered by the NJLAD may not discriminate against those who take advantage of those protections to treat disabilities. 

Beyond Medical Use

In 2021, New Jersey joined the growing list of states legalizing cannabis use for all adults over 21 and establishing regulations governing the sale of cannabis products. In most cases, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), which legalized adult use, prohibits employers from taking adverse employment action against employees or applicants solely on the basis of a positive test for cannabis. Drug testing can be used, however, in combination with other evidence to establish an employee’s impairment at work in violation of drug-free workplace policies.

Help with Cannabis Discrimination Claims

If you believe an employer has illegally discriminated against you because of your cannabis use, talk with an experienced New Jersey employment attorney. The attorneys at the Mark Law Firm have experience representing clients who have faced discrimination at work for a variety of reasons, including cannabis use. Learn more about marijuana users’ rights at work and how we can help defend them, or subscribe to our blog for regular updates on employment rights in New Jersey.